Fidelity to the Constitution

By Steve Sanders, who teaches Sexuality and the Law, Family Law, and Constitutional Litigation at the University of Michigan Law School.

Rick Santorum, the former Pennsylvania senator who currently sits near the top of the Republican presidential field, raised eyebrows over the weekend for comments to NBC’s Chuck Todd on same-sex marriage. It’s old news, of course, that Santorum opposes such marriages (he has compared them to child abuse and bestiality). What was noteworthy about these latest comments was Santorum’s casual observation that, under the sort of federal ban he supports, not only could new marriages not be performed, but all existing same-sex marriages would be nullified.

This comment largely disappeared into the rivers of hype and frivolousness coming out of this year’s Iowa caucuses. Nonetheless, it gives us the opportunity to think seriously about the difference between marriage creation and marriage nullification, and whether they differ as matters of civil rights and liberties. I address this topic in a forthcoming article in the Michigan Law Review titled, “The Constitutional Right to (Keep Your) Same-Sex Marriage.”

If a federal constitutional ban on same-sex marriage were approved, Santorum was asked, “What would you do with same-sex couples who got married? Would you make them get divorced?” He replied, “Well, their marriage would be invalid. I think if the Constitution says ‘marriages are this,’ then people whose marriage is not consistent with the constitution….” At that point, he literally shrugged. (See the video here.)

Granted, Rick Santorum is no one’s constitutional scholar. Still, it is stunning when someone who is being taken seriously as a presidential candidate (at least for this week) literally shrugs at the idea that the federal government might unilaterally void more than 130,000 perfectly legal marriages. After all, as a federal court observed in 1949, the “policy of the civilized world, is to sustain marriages, not to upset them.” Imagine the indignities and the hellish disruptions to lives, children, and property rights that Santorum’s policy would create.

Then, ponder the fact that right now we have laws in a majority of states that do pretty much the same thing.

Ben Sachs’ forthcoming Columbia Law Reviewarticle, “Unions, Corporations, and Political Opt-Out Rights after Citizens United,” serves as a useful corrective, and, indeed, is one of the absolutely essential pieces of scholarship that I’ve seen in the wake of the decision. But before getting into the article in more depth, let’s look at some basic numbers for background.

In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 29* cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in 10 of the cases, and that no free speech violation had been demonstrated in 19 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 34.48 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.

Passage of a balanced budget amendment would “threaten to tear irrevocably the fabric of our constitutional structure,” warns separation of powers expert Neil Kinkopf in a new ACS Issue Brief.

With the House of Representatives set to vote on a balanced budget amendment proposal this week, Kinkopf’s Issue Brief explains the dangers of inserting policy prescriptions into our founding document.

Kinkopf, a law professor at the Georgia State University, notes that only once in our history did the Constitution dictate an outcome, when the 18th Amendment was passed, but “[s]uch a failure was this deviation from the Constitution’s design that it stands as the only amendment ever to be repealed.”

“The founding generation faced divisive controversies that were every bit as momentous as the present-day budget crisis," Kinkopf writes. "Yet they consciously designed the Constitution not to resolve these issues, instead leaving them to be resolved through the constitutionally ordained process of legislation in compliance with constitutionally guaranteed individual rights.”

By Fazal Khan, a law professor at the University of Georgia specializing in health law. Prof. Khan has both law and medical degrees.

Today the U.S. Supreme Court confirmed what most of us expected, announcing that it will review the constitutionality of the Affordable Care Act. As the justices begin to deliberate, they would be wise to look to a masterful amicus brief by prominent constitutional law scholar Kathleen Sullivan as a meaningful template for Supreme Court action.

Sullivan’s brief, in which she asks the Court to grant cert in the 11th Circuit case that the justices today accepted, addresses those arguments most likely to concern Justice Anthony Kennedy, the swing vote on the Court, and provides ample support from Justice Kennedy’s record to suggest he will and should vote to uphold the law. Before detailing the arguments in Sullivan’s brief, filed on behalf of the California Endowment ("a private foundation committed to the expansion of affordable, quality health care for all Californians"), I summarize below how we reached this point.

As the Supreme Court justices near a decision on whether to grant review of a legal challenge to the Obama administration’s landmark health care reform law, the Patient Protection and Affordable Care Act, a potentially persuasive path for addressing the matter has emerged for the high court’s conservative wing, Simon Lazarus writes for Slate.

Silberman’s opinion has grabbed attention because of his conservative bona fides, but Lazarus says the real power behind it rests on the methodology used to dismantle opponents’ arguments against the law.